Judge: Rapist tried to defraud court

Wednesday

Feb 29, 2012 at 6:00 AM

By Gary V. Murray TELEGRAM & GAZETTE STAFF

Finding that convicted rapist Benjamin LaGuer demonstrated a pattern of behavior designed to perpetrate a fraud on the court, a judge has thrown out the ninth motion for a new trial Mr. LaGuer has filed since his 1984 conviction.

Mr. LaGuer, 48, has served 28 years of a life sentence imposed after he was found guilty in Worcester Superior Court of beating and raping his 59-year-old Leominster neighbor in July 1983.

Judge Richard T. Tucker released a 17-page ruling yesterday in which he allowed the prosecution’s motion to dismiss Mr. LaGuer’s latest motion for a new trial and denied the motion for a new trial without an evidentiary hearing.

The motion for a new trial was based on Mr. LaGuer’s contentions that post-conviction DNA testing that connected him to the 1983 rape was flawed and that newly discovered evidence cast doubt on the validity of the convictions.

Assistant District Attorney Sandra L. Hautanen’s motion to dismiss was based on an allegation that Mr. LaGuer had committed a fraud upon the court by filing what was purported to be an unsigned letter from former Assistant District Attorney James R. Lemire, who prosecuted the 1984 case, to Mr. LaGuer’s trial lawyer, Peter L. Ettenberg, offering him a plea deal.

In his ruling, Judge Tucker said he found no evidentiary support for Mr. LaGuer’s assertion that DNA testing done in 2002 at his request — testing that ultimately tied him to the crime — was flawed because DNA samples said to have been recovered from the crime scene were either purposefully or negligently “jumbled” and mixed with samples of his DNA recovered from clothing taken from his apartment.

“Here, the defendant has not established that the testing procedure was flawed or that evidence of a flawed result would have substantial effect on the jury’s determination rendered almost entirely upon the victim’s identification of the defendant as her assailant,” Judge Tucker wrote.

The judge found that evidence Mr. LaGuer claimed was newly discovered, the testimony of Annie K. DeMartino, a health aide who provided care to the victim after the assault, was not newly discovered or “sufficiently strong for a new trial to be ordered.”

In allowing the prosecution’s motion to dismiss, Judge Tucker noted that both Mr. Lemire, now a Superior Court judge, and Mr. Ettenberg, who represented Mr. LaGuer at trial, submitted affidavits in which they denied that Mr. Lemire had ever made a formal written plea offer to Mr. LaGuer.

“The prior record of post-trial proceedings has shown that LaGuer has in fact previously tampered with evidence and submitted evidence that was less than reliable,” Judge Tucker found.

In a 2003 Parole Board hearing, Mr. LaGuer admitted that he intentionally tainted his court-ordered saliva sample, from which his blood type was to be determined, by mixing his saliva with that of another inmate.

“LaGuer’s actions of deception in regard to his saliva sample and his putting forth the resulting invalid results as a fact that the court should consider in its evaluation of motions for a new trial are intentional acts performed to subvert the truth-finding process. They are fraudulent,” Judge Tucker wrote.

The judge further found that the 1984 letter allegedly written by Mr. Lemire was “unauthentic” and that its knowing use in the proceedings before the court was “an attempt to again interfere with the judicial system’s ability to impartially adjudicate the matter.”